Free Speech on Trial in Tacoma

TACOMA, Washington — Very few Americans like the IRS, especially when April 15 rolls around.

But most taxpayers are discreet enough to keep their feelings to themselves, and not mouth off about how nice it would be to see the IRS eliminated. At least, not on an electronic mailing list populated with Treasury Department agents.

The gruff, bearded man, an itinerant musician and longtime computer geek, spent much of last year railing online against Bill Gates, various federal officials, and IRS agents.

The IRS claims he went too far, crossing the line from hypothetical discussions of violence against “Law Enfarcement Offals” to actual threats. Based on three email messages allegedly typed by Johnson and sent to the cypherpunks mailing list, prosecutors arrested him and charged him with five counts of threats and obstruction of justice.

The trial began here this week. Through his attorney, Johnson has denied the charges, saying anything he wrote is protected by the First Amendment’s guarantees of freedom of speech.

He may have a point. The vast majority of messages the government says Johnson wrote are darkly rambling satire, a kind of ASCII performance art, with titles such as “SPACE ALIENS HIDE MY DRUGS!!”

One message likened the author to Patrick Henry. “The irony, of course, is that I do not pose a great danger to anyone but myself as long as I continue to have my human rights and my liberty unthreatened.”

The Supreme Court has said that advocating violence against government officials cannot be punished. In a 1969 case, the justices debated whether a Ku Klux Klan leader could be jailed for saying: “If our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.” The verdict: No. Such a law punishes “mere advocacy,” the court decided. Earlier that year the court ruled that a man’s stated wish to kill the president was political hyperbole.

Johnson’s attorney says his client’s statements were also simple hyperbole.

“They’re outrageous statements made in a political forum as part of a political forum as part of a political discussion. It’s obviously a parody and a spoof,” Gene Grantham said in an interview Wednesday. “No rational person would be incited to do anything on the basis of those communications.”

The political discussion in question? A lawsuit sponsored by the Electronic Frontier Foundation that challenges the White House’s restrictions on overseas shipments of encryption products. On 8 December 1997, the Ninth Circuit Court of Appeals in San Francisco heard the government’s appeal in the case.

The next day, a message titled “Encrypted InterNet DEATH THREAT!!!” appeared on the cypherpunks mailing list. The loose-knit group discusses the social and political impact of privacy-protecting software.

The note, which mentioned the names of the judges hearing the case, read: “I will share the same ‘DEATH THREAT!!!’ with Judges Fletcher, Nelson, and Bright that I have shared with the President and a host of Congressional and Senatorial representatives. ‘You can fuck some of the people all of the time, and all of the people some of the time, but you are going to end up in a body bag or a pine box before you manage to fuck all of the people all of the time.’ Am *I* going to whack you out? Maybe…”

But the message said the author was unlikely to do the deed himself. The note was posted anonymously — but was digitally signed with a copy of the free encryption program PGP, or Pretty Good Privacy.

The IRS has tried to link the digital key used to sign the message with a key owned by Johnson. That plan might well have worked, had Johnson been found to be the only person with that particular key.

But two months after Johnson’s arrest, a copy of the same key was anonymously distributed.

“On October 13, 1998, an anonymous poster posted to the Cypherpunks an authentic copy of both the public and secret key used to encrypt the December 9, 1997 death threat message,” the IRS says in a court document.

Translation: Anyone who had the key could have posted the death threat.

It’s small wonder, then, that the IRS particularly dislikes anonymity, which is common on the cypherpunks list. In its pretrial brief, the government says: “Someone engaged in purely political speech would have no reason to hide his identity in a free society.”

Witnesses who have testified so far include government officials and special agents. On Thursday, EFF cofounder John Gilmore will testify about the nature of the cypherpunks mailing list and some of the archives of the list that he has kept.

Editor’s Note: Declan McCullagh has been subpoenaed by the government to testify in the Johnson trial. His testimony will relate to a series of articles that he wrote on Johnson’s arrest last year.

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